Maryland Accident Law Blog

Establishing Liability in a Maryland Medical Malpractice Case

September 26, 2019 | Lebowitz & Mzhen

Recently the Supreme Court of Virginia issued an opinion stemming from a medical malpractice lawsuit against a plastic surgeon. The court addressed two common issues concerning expert witnesses and abuse of discretion that frequently occur in Maryland medical malpractice lawsuits.

According to the court’s opinion, the doctor performed a cosmetic procedure, a blepharoplasty, designed to remove puffiness and fat from the eyelids. Following the surgery, the plaintiff discovered that she was functionally blind in one eye after suffering permanent injury to her levator muscle. The plaintiff filed a medical malpractice lawsuit against the doctor, alleging that he negligently performed the surgery. At trial, the jury found in favor of the plaintiff and awarded her compensatory damages. The defendant appealed the ruling, arguing, among other issues, that the plaintiff should not have been permitted to cross-examine his medical expert on his disciplinary history.

In Maryland, plaintiffs must have a medical expert witness to support their medical malpractice lawsuit. Moreover, plaintiffs are entitled to cross-examine a defense’s expert witness. Generally, under Maryland law, an expert witness must have, clinical experience, previous consultations related to clinical practice, and taught medicine in the defendant’s specialty within five years of the negligent action. After a medical expert agrees to testify, they must obtain a Certificate of Merit. During testimony, a plaintiff is permitted to cross-examine an expert witness. Maryland Rule 5-702, mirrors the Frye standard, which allows expert testimony if it will enable the trier of fact to understand the evidence or determine an issue. Additionally, if a party objects to testimony, the court will weigh the testimony’s probative value versus its prejudicial effect to determine whether admitting the testimony is appropriate.

The Gross Negligence Standard in Maryland Wrongful Death Suits

September 19, 2019 | Lebowitz & Mzhen

A Maryland Appellate Court recently issued a written opinion discussing the heightened standard for proving gross negligence in a Maryland wrongful death lawsuit. According to the court’s opinion, in early March of 2011, the victim woke up around one in the morning with chest pains. The victim’s wife called 9-1-1, reporting the chest pain and her husband’s difficulty breathing and speaking. The defendants, first responders, arrived on the scene shortly after, asked the victim about his symptoms, and did a visual assessment, concluding that he should be taken to the ambulance for further assessment. The victim walked to the ambulance himself without the aid of a stretcher. Once inside the ambulance, the defendants checked his vitals, which all appeared normal. The defendants then determined they would take him to the nearest hospital.

Approximately seven minutes after first arriving on the victim’s street, the defendants took him to the hospital. According to the defendants, the victim was comfortable and talkative during the three-minute drive. At the hospital, while waiting in the emergency room, the victim’s condition seemed to worsen, and the victim held his chest and complained about the pain for five to ten minutes until he ultimately became unconscious. At this point, he was taken immediately to receive treatment, and the defendants left the hospital and went back to work. The victim ultimately could not be resuscitated and died of a heart attack.

Maryland law allows surviving family members to seek compensation for a tragedy, and the victim’s family filed a wrongful death claim against the defendant first responders. Under Maryland law, to be successful in a claim against a first responder, the plaintiffs must prove gross negligence, as opposed to simple negligence. Gross negligence, according to the court’s opinion, is a high bar to prove. Simple negligence is falling below the ordinary level of care that a reasonable individual would use in a similar situation. Gross negligence, on the other hand, is an intentional and reckless disregard of the consequences of one’s actions or how they may affect others. This is a difficult standard, and to be considered gross negligence the conduct must be extraordinary or outrageous.

Maryland Plaintiffs Must Prove Damages as Element of Medical Malpractice Claim

September 12, 2019 | Lebowitz & Mzhen

A patient who suffers physical, emotional, or financial injuries due to the negligence of a hospital worker or medical professional may file a Maryland medical malpractice lawsuit against the entity or individual. Medical professionals include doctors, nurses, nursing assistants, physician’s assistants, and all other healthcare workers.

A medical professional’s injurious, negligent act or omission can lead to a medical malpractice lawsuit. Most frequently, these lawsuits stem from negligent health management, diagnostic or treatment errors, or inadequate aftercare. Some common examples of medical malpractice include failures to diagnose or misdiagnosis, misread or fabricated laboratory results, unnecessary surgery, surgical errors, early discharges, and disregarding patient history and concerns.

To establish a medical malpractice claim, a victim must prove four distinct elements. First, the plaintiff must be able to prove that the medical professional violated their standard of care. Certain standards are considered appropriate by the medical community at large. When a medical professional violates this standard of care, then legal negligence may be established. Next, the victim must be able to prove that they suffered an injury due to the defendant’s negligence. To do so, a plaintiff must show that their injury would not have occurred but for the actions of the healthcare worker. A plaintiff must also prove that the defendant’s actions were the proximate cause of their injury. Finally, the victim must be able to prove that the harm caused them significant damages. Significant damages encompass things such as, disability, unusual or significant pain, suffering, hardship, and costly medical bills.

Maryland Personal Injury Plaintiffs Must Be Sure to Follow All Procedural Requirements

September 5, 2019 | Lebowitz & Mzhen

The strength of a Maryland personal injury claim is irrelevant if the court dismisses a plaintiff’s case based on their failure to comply with certain court rules or procedures. Thus, it is critical that anyone considering bringing a personal injury lawsuit discuss their case with a knowledgeable Maryland injury lawyer.

A recent federal appellate decision illustrates the court’s ability to effectively eliminate a plaintiff’s opportunity to recover for their injuries if the plaintiff does not abide by the court’s orders. According to the court’s opinion, the plaintiff was seriously injured as a result of a surgery she underwent at a hospital. The plaintiff brought a medical malpractice lawsuit against the hospital, and several of the doctors who helped with the procedure.

After the defendants filed their answer to the plaintiff’s complaint, the court entered a scheduling order outlining the important deadlines in the case. Three of the deadlines that were pertinent to this appeal were:

Maryland Slip and Fall Accidents Occurring in Public Parks

August 28, 2019 | Lebowitz & Mzhen

In general, Maryland personal injury law provides that landowners owe a duty to those whom they allow onto their property. This duty typically requires that the landowner cure any known hazards, or warn visitors about dangers that cannot be remedied. However, many state legislatures have enacted statutes that exempt certain property owners from liability if someone is injured while using the property for a recreational purpose.

These statutes are generally referred to as recreational use statutes. In Maryland, the recreational use statute is contained in Maryland Code section 5-1104. The law provides that a landowner who allows others to use their property without charge for an educational or recreational purpose cannot generally be liable for a guest’s injuries. This statute applies to both public and privately held land. A recent case illustrates the type of issues that can come up when a defendant cites the recreational use statute as a defense.

According to the court’s opinion, two sisters attended a free “Second Sunday” concert at a public park. To access the park, the women parked their car on the street and then descended a flight of stairs down the grassy slope. Once the women got about halfway down the hill, they exited the stairs and found a place to watch the show.

Does Maryland Have an “Equine Immunity” Statute?

August 22, 2019 | Lebowitz & Mzhen

Almost every state in the Union has some form of equine immunity statute. However, Maryland is one of just two states (the other being California) that does not have an equine immunity statute. An equine immunity statute is a law that is passed to protect the horse industry from liability that may arise from the inherent risks of caring for horses, riding horses, and observing horse races. Generally, an equine immunity statute provides that those who own or ride horses professionally cannot be liable for injuries caused by the horse.

Before getting into why Maryland does not have an equine immunity statute, a recent case illustrates how equine immunity statutes impact an injury victim’s ability to recover for horse-related injuries. According to the court’s opinion, the plaintiff was a spectator at a youth horse race. Rather than sit along the track where most spectators observed the race, the plaintiff watched right along the track’s edge, near where the exit to the track was located. The plaintiff watched as the horses went around several times without incident, however, on about the fourth lap, the defendant’s horse struck the plaintiff.

The defendant was a young girl who had tried to stop the horse from crashing into the plaintiff, but was unable to do so. The plaintiff filed a personal injury lawsuit against the young girl’s family, and the girl’s family filed for summary judgment, arguing that the state’s equine immunity law precluded the plaintiff from filing her claim. The court agreed, and dismissed the plaintiff’s claim, noting that the plaintiff was injured due to the risks that are inherent in watching a horse race.

E-Cigarettes and Vaporizers Pose a Serious Risk to Maryland Users

August 14, 2019 | Lebowitz & Mzhen

An e-cigarette is a device that uses battery power to heat a liquid to a high enough temperature so that it produces an aerosol which users inhale. Typically, the fluid in an e-cigarette cartridge contains nicotine. E-cigarettes go by several names, including vape pens, tank systems, and mods. Over the past decade, use of these products has grown at an exponential rate, mostly among younger users. Maryland e-cigarette use among young adults is concerning for many reasons, including the fact that there have been many reports of severe physical injury related to use of these products.

Recently, a state appellate court issued a written opinion in a personal injury case that was brought by a man who lost several teeth when an e-cigarette device exploded while he was inhaling. According to the court’s opinion, the plaintiff sued several defendants who manufactured, marketed, and sold the device; however, most defendants settled with the plaintiff before trial. Thus, at trial, the case proceeded against just one defendant.

Before trial, the defendant wanted to introduce evidence that the plaintiff was a former user of methamphetamine. The defendant suggested that the plaintiff’s methamphetamine use could have contributed to the plaintiff’s damages. The court precluded the evidence, and the case went to trial by jury. After trial, a jury awarded the plaintiff $48,000 for medical expenses and $2 million in compensation for his pain and suffering.

Federal Appellate Court Overseeing Maryland Courts Finds Defendant Doctor Did Not Breach the Duty of Care He Owed to the Plaintiff’s Newborn Daughter

August 6, 2019 | Lebowitz & Mzhen

On July 11, 2019, a federal appellate court issued a written opinion in a case that raises an interesting and important issue for those who are considering filing a Maryland medical malpractice case. Specifically, the case required the court to determine whether the plaintiff’s evidence proved that the defendant’s conduct breached the duty he owed to the plaintiff’s daughter.

According to the court’s opinion, the plaintiff was the mother of a baby who was born with severe brain damage. Evidently, when the baby was born, she exhibited signs of respiratory distress. The hospital where the baby was born did not have a neonatal intensive care unit (NICU). Thus, it was common for hospital staff to transfer babies in need of serious medical attention to the nearest NICU.

The doctor overseeing the baby’s care, however, determined that the baby could be appropriately cared for at the hospital’s “Max Care Nursery.” After monitoring the baby for a few hours with no improvement, the doctor consulted with another specialist. The specialist took the baby under his care and eventually transferred the baby to the nearest NICU. As a result of respiratory distress, the baby suffered severe brain damage. The plaintiff filed claims against all doctors who treated her child, as well as the hospital. However, only the doctor overseeing the baby’s care remained, as all other defendants settled with the plaintiff.

Maryland Parking Lot Slip-and-Fall Accidents

July 25, 2019 | Lebowitz & Mzhen

Parking lots are riddled with potential hazards, from potholes, to shopping carts, to inattentive drivers. It is not surprising, then, that there are thousands of people who are injured in Maryland parking lots each year. A significant number of these injuries are the result of slip-and-fall accidents. Recently, a state appellate court issued a written opinion in a premises liability lawsuit arising out of a parking lot trip-and-fall.

As the court described the facts leading up to the filing of the case, the plaintiff was injured while she was returning a cart after shopping at the defendant grocery store. The plaintiff finished shopping and entered the shopping cart corral without issue, however, as the plaintiff was leaving the corral, she tripped on a raised crossbar connecting the ends of the corral. Evidently, the corral was hit by a delivery truck several months prior to the plaintiff’s accident, which bent the frame of the corral. As a result, the crossbar of the corral lifted off the ground by a little over an inch. It was this raised crossbar that caused the plaintiff to trip and fall.

The plaintiff initiated a premises liability lawsuit against the defendant. In response, the defendant argued that the plaintiff should not be permitted to recover for her injuries because the hazard that caused her injury, the raised crossbar, was open and obvious. The defendant explained that it had called to have the crossbar fixed, but hadn’t scheduled a day to have the repair completed. The defendant also noted that the plaintiff was able to safely enter the corral, suggesting she knew that the crossbar posed a potential hazard. The lower court agreed, and dismissed the plaintiff’s case. The plaintiff appealed.

The Importance of Expert Witnesses in Maryland Personal Injury Cases

July 19, 2019 | Lebowitz & Mzhen

Many Maryland personal injury cases involving car crashes and slip-and-fall accidents raise issues that most jurors have experience within their own lives. However, in Maryland medical malpractice cases and claims involving a dangerous or defective product, there are often complex scientific or medical issues that are beyond the average juror’s expertise. In these cases, the court may allow both parties to call an expert witness.

Under Maryland Rule 5-702, the court may allow expert witness testimony, “if the court determines that the testimony will assist the trier of fact in understanding the evidence or in determining a fact in issue.” If allowed to testify, an expert can provide their opinion regarding issues within their expertise to help the jury understand concepts that may otherwise be confusing.

Before a court allows a party to call an expert witness, the court considers three factors: